The Netherlands: Court rules on case in battle between Nikon and ASML

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19 October 2018

In the patent battle between Nikon and ASML in relation to
which 11 cases were pending before the District Court of The
Hague, the Court recently ruled on case three.

Nikon is holder of European patent EP 2937734B1, granted on
December 28 2016. It has 18 claims with independent product
claim 1 and independent process claim 15. Both independent
claims incorporate feature 1.6: "The reference (MFM) is covered
with a light-transmissive material". The reference is provided
on the substrate (wafer) that is used for detecting a
projection position of the pattern image to be projected on the
wafer. The parties agree that the other features in the claim
are present in ASML's machine, but dispute the presence of
feature 1.6.

To prove infringement Nikon referred to a publication of
ASML and Zeiss from 2010 and a patent application of ASML from
the same year. These publications, however, do not disclose
anything about the actual features in the machines that ASML is
currently selling in 2018.

ASML convincingly argued – with a statement from
its senior architect – that at least since the grant
of the patent, it only manufactures NXT machines in which the
reference is not covered with a light-transmitting material.
ASML proved with an expert statement that – although
previous machines were equipped with such a light-transmitting
coating – this resulted in degradation of the coating
over time and hence in decreasing precision. To solve this,
ASML removed the coating at the reference position in machines
made since March 2016 in Veldhoven. From that moment onwards,
even when repairing older machines, the sensors – if
any – were replaced with sensors without coating.
Repair of the machines anyway was not held to be contributory
infringement in the Netherlands as Nikon did not show that an
essential component was supplied or that the machine was
reconstructed. The Court did not grant an injunction for
machines covered by the patent sold by ASML before grant.

Nikon also argued that ASML was obliged to use such a
light-transmitting layer since removing it causes problems.
ASML however argued, again with an expert statement, that these
problems occur theoretically, but not in practice.

Nikon further failed to prove the infringement with, for
example, product specifications or a more concrete analysis.
Nikon's argument that it was not possible to more thoroughly
prove infringement because it is too expensive to buy such a
machine (the cost is EUR 80 million) and that ASML would not
deliver to a competitor, did not hold. Other means of gathering
evidence would have been available, such as a descriptive
seizure. Nikon's attempt to reverse the burden of proof to ASML
was not honoured by the court, either. It was not sufficient to
contest the correctness and credibility of ASML's
motivation.

The District Court ruled that there was no direct
infringement and also, with regard to repair activities, no
contributory infringement. Nikon was directed to pay the court
costs of ASML, about EUR 600,000.